BORDC/DDF Tells ISPAB That FBI’s Going Dark Initiative Chills Speech

On Thursday October 23, 2015 the Federal Bureau of Investigation (FBI) gave a presentation to Information Security and Privacy Advisory Board (ISPAB). The FBI discussed their Going Dark Initiative, which is predicated on the belief that if private companies encrypt consumer data by default, the FBI will be unable to gather evidence and thus “go dark.” In the past the FBI has asked that private companies include built-in access for the government on consumer devices, something that is frequently referred to by experts, detractors, and the media alike as a “backdoor.” Recently, however the FBI has shifted stances. First, Director James Comey tried to clear up misconceptions saying that the FBI had never asked for a backdoor—instead they merely wanted a front door. Recently, they have dropped any actual requests for any tangible policy change.

This was very much the position the FBI took when presenting to ISPAB. James Baker, the FBI’s general counsel, claimed that, in spite of what people have been saying, the FBI has never asked for a back door. Baker also explained that the FBI did not have a specific ask or proposal, but was merely going to any forum that would listen to them to discuss the general problems posed in hopes of informing the public about the problem. Baker further postulated that there may “not be a solution, only choices.” The board members asked many pointed questions. A notable moment occurred when Baker stated that after 9/11 thee FBI’s goal was “zero failures” A board member told him “We could have zero failures and live in a police state.”

While the board provided excellent and provocative questions, the Defending Dissent Foundation/ Bill of Rights Defense Committee felt that our analysis of the Going Dark Initiative based on the intersection of privacy and dissent was needed. Given that the FBI has decided it will go to any forum that will listen to them to discuss Going Dark Initiative, we at BORDC/DDF decided to follow suit. That is why today, as part of the public comment process, I delivered public testimony to ISPAB on behalf of BORDC/DDF.

I explained to ISPAB that as two national civil liberties organizations that work to realize the rights promised by U.S. Constitution we had a dual concern when it comes to technology. First, we see technology in the hands of the people as having a democratizing effect. The use of technology in organizing the Arab Spring, Occupy Wall Street, and Black Lives Matter protests demonstrates this. However, technology in the hands of the government can be used for repressive purposes or chill speech. An example of such a chilling effect is reports that many journalists are hesitant to use e-mail to contact their sources. Whereas email should be making journalism easier (journalists can contact sources virtually they cannot contact physically) it has instead created chilling effect that has caused journalist to curtail their use of an important tool.

On the Going Dark Initiative the FBI has often cited the importance of terrorism investigations as justification for the need to limit encryption capabilities. I noted to ISPAB though that terrorism investigations in the last 30 years have frequently infringed on the First Amendment. It was part of terrorism investigations that the FBI surveiled the Committee in Solidarity with the People of El Salvador, the Catholic Workers Movement, Greenpeace, People for the Ethical Treatment of Animals, the Thomas Merton Center for Peace Social Justice, Occupy Wall Street, and Black Lives Matter.

I also stressed the very real harms of this surveillance, telling the board:

Even the federal government recognizes that its surveillance is not benign. Both the Supreme Court and the Federal Elections Commission have partially exempted the Socialist Workers Party (SWP) from campaign finance disclosures due to the “long history of threats, violence, and harassment against the SWP and its supporters by Federal and local law enforcement agencies and private parties.” While the FBI’s counter intelligence actions against the SWP may seem like ancient history, the FEC renewed this exemption in 2013 citing a continuing threat against its members.

Given the concern about how privacy was essential to dissent, I stressed to the board that there was another concern that it often neglected. I said:

When we have discussed encryption we have tackled it from two competing interests—that of individual consumers to secure important personal information from cyber criminals and the fear that bad actors may try to conceal their actions from the government. There is, however as the FEC exemption for the SWP shows, a third interest to take into consideration—individuals who want to protect their information from the government not due to their personal bad acts, but to shield themselves from the bad acts of the government.

It is for this reason that we at BORDC/DDF strongly support the right to encrypt data and strongly oppose government attempts to erode encryption by giving the government a back or front door. We believe that by doing so we are carrying on in the spirit of Senator Sam Ervin when he said:

Each time we give up a bit of information about ourselves to the Government, we give up some of our freedom: the more the Government or any institution knows about us, the more power it has over us. When the Government knows all of our secrets, we stand naked before official power. Stripped of our privacy, we lose our rights and privileges. The Bill of Rights then becomes just so many words.